5.  The applicant, Mrs Miluša Mižigárová, is a Slovak national who was born in 1979 and lives in Poprad. She is represented before the Court by Ms L. Gall of the European Roma Rights Centre, a lawyer practising in Budapest. The Slovak Government (“the Government”) were represented by their Agent, Ms M. Pirošíková.
6.  The facts of the case, as submitted by the parties, may be summarised as follows.
7.  At approximately 8.00 to 8:30 p.m. on 12 August 1999 police officers G. and J. apprehended the applicant's husband, Mr Ľubomír Šarišský, and another person (“R.K.”) on suspicion of having stolen bicycles. At the time of his arrest, Mr Šarišský was twenty-one years old and in good health.
8.  Following their arrest Mr Šarišský and R.K. were driven to the District Police Department in Poprad. After four policemen questioned him, Mr Šarišský was taken to another room for further interrogation by Lieutenant F., an off-duty officer with whom he had had previous encounters. At some point during the interrogation, Mr Šarišský was shot in the abdomen. He died after four days in hospital as a result of the bullet wound sustained in the police station during his interrogation.
9.  The following is a more detailed description of the relevant facts as alleged by the applicant.
10.  After being taken to the District Police Department, Mr Šarišský and R.K. were questioned by police officers H. and K., who were on duty at the time. Officers G. and J. were present during the interrogation. When later testifying before the investigator, Sgt. H. stated that “Šarišský was aggressive during the interrogation, he kept getting up from the chair, banged his head against the wall saying he would jump from the window”. Sgt. H. stated that Mr Šarišský had not been handcuffed during interrogation. According to police officer G., however, Mr Šarišský remained handcuffed, at least for the time he was present.
11.  According to officer H., Lt. F. joined the interrogation when Mr Šarišský was signing the record of the interrogation. Mr Šarišský and Lt. F. started arguing, shouting at each other using their first names. Lt. F. was off duty at the time. His shift was to start at 11 p.m.
12.  Lt. F. subsequently phoned his superior, the Director of the Criminal Police Department in Poprad, and informed him that Mr Šarišský and another person had been apprehended. The Director told Lt. F. that he had been informed about the arrest by the operations officer, that he would come to the task assignment meeting at 10.30 p.m. to decide who would question the suspects, and that “it might as well be him”.
13.  Lt. F. considered that he had been authorised to question Mr Šarišský. He volunteered to take over the questioning. He took Mr Šarišský to his office in the District Police Directorate, which was located in a different part of the same building. Lt. F. handcuffed Mr Šarišský to a radiator and left his office for a while.
14.  Upon his return Lt. F. removed the handcuffs from Mr Šarišský and resumed the questioning. Mr Šarišský was subsequently shot in the abdomen with Lt. F.'s service pistol. Lt. F. telephoned the operations officer and asked him to call the emergency services. He then ran to the operations centre to repeat his request. Lt. F. returned to his office and carried Mr Šarišský down to the vestibule. From there he was transported to a hospital.
15.  At midday on 13 August 1999 Capt. T., a police officer of the Department of Supervision and Inspection Service of the Ministry of the Interior, questioned Mr Šarišský in his hospital bed. The questioning took place in the presence of the head physician.
16.  Mr Šarišský was able only to move his head in response to questions asked. When asked whether he was shot by the policeman, he answered “no”; whether he shot himself, he answered “yes”; did he steal the gun from the police - “no”; did he ask for the weapon from the policeman and it was handed to him, he answered “yes”; did the policeman hit him - “yes”; and when asked if there was any one else in the room besides the policeman, he answered “no”. When asked by Capt. T., the head physician allegedly stated that Mr Šarišský had no injury to the jaw or any hematomas on the body apart from the bullet wound.
17.  The applicant only learned about the incident on 13 August 1999 when she met R.K., who had been released. She went to the hospital with another person and saw that her husband was connected to different tubes. He was conscious but could not speak. She asked him whether he had shot himself. Mr Šarišský responded “no” by moving his head. She repeated the question and received the same answer from him. Her husband could not hear at all in one ear, although he had never had any problem with his hearing. He had bruises all over his body, “below the neck, ... on the right shoulder, ... on his face and below, underneath his right eye”.
18.  The applicant visited her husband again on 14 August 1999, accompanied by two other persons. When asked whether a policeman had shot him, Mr Šarišský nodded. Mr Šarišský had bumps on the head and his face was swollen. They wanted to take pictures of those bruises but the head physician did not allow them to.
19.  Mr Šarišský died on 17 August 1999 as a result of complications caused by the wound. On the same day an investigator from the Police Regional Investigation Office in Prešov ordered the examination and autopsy of the body. He instructed two forensic medical experts to perform an external and internal examination of the corpse and describe the individual wounds and how they arose. He ordered them to submit the report within fourteen days.
20.  The forensic experts carried out the autopsy on 18 August 1999 but the autopsy report was not submitted to the investigator until 26 October 1999.
21.  The report stated that there was a small, visible bruise of 3x2cm on the mucous membrane of the upper and lower lips in the left corner of the mouth. The autopsy report also described a torn drum in the left auditory canal with clear liquid. According to the report, such a condition could arise as the result of illness or inflammation of the inner ear, but it could also be caused by a blow with a blunt object.
22.  The report concluded that Mr Šarišský had died a violent death, caused by post-traumatic and hemorrhagic shock induced by a perforating gunshot wound to the abdomen inflicted by a projectile fired from a police service pistol. The gunshot ruptured the large intestine, the mesentery of the small intestine, the inferior vena cava, the lumbar spine and spinal cord. There was shock after injury resulting from bleeding which, together with the subsequent complications (including acute inflammation of the soft tissues of the spinal cord and the brain and a serious defect of blood coagulation) led to the death of Mr Šarišský.
23.  According to the testimonies of his close relatives, Mr Šarišský did not know how to handle weapons, he had never owned or handled a gun, and he did not have any record of mental instability.
24.  Throughout the course of the subsequent investigation, Lt. F. offered differing accounts of the circumstances which preceded Mr Šarišský's death.
25.  According to the statements by Lt. F., he sat down on a chair at the table next to the window in his office, whereas Mr Šarišský sat down on a chair by the wall. When the questioning resumed, Mr Šarišský denied the thefts. Allegedly, they raised their voices. According to Lt. F., he told Mr Šarišský to write the names of those responsible for the theft on a piece of paper and left him alone in the office without handcuffing him. Lt. F. alleged that when he returned to the office, he had to walk around Mr Šarišský, who was sitting on a chair with his back to the door. As Lt. F. passed him, he felt a sudden blow to his right shoulder and fell to his knees. He heard a click and realised that Mr Šarišský had cocked the pistol. According to Lt. F., when he stood up and turned to face Mr Šarišský, he saw the latter holding his service pistol in his hands, which he aimed at Lt. F. When Lt. F. asked Mr Šarišský not to do anything stupid and to give back the weapon, the latter allegedly pointed the pistol towards himself in the area of the abdomen and, sitting on the chair, pulled the trigger.
26.  According to Lt. F., Mr Šarišský remained in a sitting position on the chair, holding the pistol in his hand. Lt. F. took it from him and put it on the table. He then claimed he phoned the operations officer and asked for medical help. After that, he unloaded the weapon, looked on the floor for the magazine or ammunition and re-assembled it. He looked at Mr Šarišský's wound and saw that on the paper which he had left him was the text “say hello to Kristína”. He then ran to the operations centre to repeat the call for the emergency service. Mr Šarišský remained seated on the chair and when Lt. F. returned to his office, he carried him down to the vestibule.
27.  The applicant points out that both in the report where he provided explanations to his superior on the night of the incident and in a report drawn up on 13 August 1999 Lt. F. briefly described how the suspect had pulled his service pistol out of the holster, cocked it and shot himself in the abdomen. It was only in his later statements that he mentioned any violent or forceful action by the victim. The applicant also points out that Lt. F. was approximately 1.90 metres tall and weighed about 100 kilograms. Mr Šarišský was considerably smaller.
28.  Moreover, Lt. F. offered an inconsistent account of how he had walked by Mr Šarišský in the moment preceding the alleged attack. Lt. F. claimed that Mr. Šarišský had been sitting with his back to the door but according to the statement of another police officer, who entered Lt. F.'s office after hearing the shot, Mr Šarišský was sitting on a chair facing the door. The Government have contested the English translation of this police officer's statement, and contend that in the Slovak version he in fact stated that Mr Šarišský was sitting with his right side facing the door. During the first reconstruction of the incident on 8 September 1999, Lt. F. told the investigator that he had passed on the right side of Mr Šarišský, but he later said that he had passed between the table and Mr Šarišský.
29.  Lt. F. claimed that Mr Šarišský had attacked him from behind, surprising him and simultaneously pulling his pistol from the holster and cocking it. He could not remember how Mr Šarišský had held the pistol, or in which hand, and he gave several accounts of what he did with the pistol after removing it from the victim's hand.
30.  After the incident had occurred, a police officer took the pistol of Lt. F. and placed it in the information officer's room. The investigator then seized the pistol. A task-force was formed which consisted of a forensic technician from the Criminal Police Department of the Police Force District Directorate in Poprad, a Senior Inspector at the Police Force Circuit Department in Poprad and an Investigator from the Police Force District Office of Investigation in Poprad. The task force carried out an on-site inspection on the night of 12 August 1999. Two police officers were present for the inspection.
31.  Starting at 11.50 p.m., they inspected Lt. F's room. They did not take samples of gunpowder residue from the hands of Lt. F. The reason given was that they did not have the proper and necessary materials. The samples were taken at approximately 2.00 p.m. the next day by an expert technician from Kosice and no residue was found. Lt. F. claimed that he had not washed his hands before the samples were taken. As for Mr Šarišský, the nurse at the hospital had washed his hands after he underwent the first surgery, thus rendering the test useless.
32.  On 20 August 1999 an investigator from the Regional Office of Investigation in Prešov ordered the Criminology and Expert Opinions Institute of the Police in Bratislava to undertake dactyloscopy, biology and chemistry test on objects, traces and samples found during the site inspection. The results of this examination were all negative. According to the expert opinion of the Criminology and Expert Opinions Institute in Bratislava which examined and evaluated the disks from the hands of Mr Šarišský and Lt. F., no particles coming from firing residue were found. The dactyloscopy expert did not find any fingerprints on the weapon which could be evaluated, due to the insufficient number of papillary lines.
33.  On 6 October 1999 the same institute examined the piece of paper with the text “say hello to Kristína” and compared the writing with the writing of Lt. F. and of Mr Šarišský. The experts concluded that the text had most probably not been written by Lt. F., whereas that part of the text which read “say hello to” had most probably been written by Mr Šarišský. They could not adequately evaluate the word “Kristína” because it was written in capital letters and they did not have sufficient samples of capital letters from the deceased Mr Šarišský. The applicant submits that the investigation file which her representative examined at the Poprad's courthouse did not contain this document. An independent handwriting test was therefore impossible.
34.  On 8 September 1999, between 7.10 p.m. and 9.15 p.m., the Police Regional Investigation Office in Prešov conducted a reconstitution of the events in the office of Lt. F. The experts were informed of the location of the entry and exit wounds and the location where the bullet hit the chair. The reconstruction documented possible alternatives for the shooting of Mr Šarišský, with Lt. F. and Mr Šarišský in different positions, and with each one firing the fatal shot. The ballistic expert present at the reconstruction concluded that the injury to Mr Šarišský was “most probably” self-inflicted as the direction of the shot was from below upwards and from the right to the left.
35.  On the same night, from 9.20 p.m until 9.40 p.m, an experiment was performed with the aim of clarifying how the weapon was pulled and respective time intervals. During the reconstruction Lt. F. stated that his shirt had been tucked in under the belt on which he had the holster containing the weapon. According to the report, the investigation experiment measured the time intervals for three different ways of pushing and simultaneously drawing the weapon from Lt. F.'s holster, pushing with the hand, pushing with the forearm and with the left part of the body and the hand. These three alternatives were repeated twice.
36.  On 12 November 1999 a police investigator from the Regional Investigation Office in Prešov accused Lt. F. of the offence of injury to health. He was questioned immediately afterwards and pleaded not guilty.
37.  On 18 November 1999 Lt. F., through his counsel, submitted the grounds and his reasons for pleading not guilty. In particular, he stated that there had been nothing to lead him to the conclusion that Mr Šarišský would injure himself. He also stated his weapon had been properly secured in the holster which he had had on his belt under his shirt. He alleged that the deceased unexpectedly, suddenly, and with the use of force had pulled his weapon out of the case.
38.  The applicant points out that in this testimony Lt. F. altered his previous statements regarding the non-violent behaviour of Mr Šarišský and the way he was carrying the gun. According to this testimony, the pistol had been covered by the shirt so it could not be seen, whereas during the September reconstruction of the events he had stated that his shirt had been tucked in under the belt on which he had the case with the weapon.
39.  At 9.00 p.m. on 4 May 2000, in view of the new testimony given by Lt. F., the Regional Investigation Office in Prešov and technicians from the Criminal Police Department in Poprad conducted another experiment with the aim of clarifying the manner of drawing the weapon. During the experiment, when the accused was carrying the pistol covered by his shirt in accordance with Lt. F.'s testimony of 22 November 1999, the assistant did not succeed in any one of three attempts to pull the weapon.
40.  On 11 May 2000, following the completion of the investigation, the applicant and her counsel perused the entire investigation file. In the record they confirmed that they had been given sufficient time for the perusal, that they proposed no further investigation be carried out, and that they had no comments on the documents included in the file.
41.  On 29 May 2000 a public prosecutor indicted Lt. F. with the offence of causing injury to health under Section 224(1) and (2) of the Criminal Code as a result of his negligence in the course of duty. In the indictment the public prosecutor stated, inter alia, that Lt. F.'s testimony that the pistol was on his belt covered by the shirt was not true, because if that had been the case, Mr Šarišský could not have pulled it away from him.
42.  On 18 October 2000 a judge of the District Court in Poprad issued a penal order under Section 314e of the Code of Criminal Procedure. In it he convicted Lt. F. of injury to health caused by negligence in the course of duty within the meaning of Section 224(1) and (2) of the Criminal Code. The penal order stated that Lt. F. had failed to secure his service weapon contrary to the relevant regulations and that, as a result, Mr Šarišský had managed to draw the weapon from the case and to inflict with it a lethal injury on himself.
43.  Lt. F. was sentenced to one year's imprisonment, suspended for a two‑and-a-half-year probationary period. The penal order of 18 October 2000 was based solely on the evidence submitted by the prosecutor and it gave no account of the criminal investigation. The judge referred the injured parties, including the applicant, to civil proceedings for damages.
44.  Neither the public prosecutor nor Lt. F. challenged the penal order which thus became final.
45.  Lt. F. committed suicide on 23 January 2001.
46.  The applicant had participated in the criminal proceedings as a victim and sought an award of damages. As she did not indicate the quantum of damages sought, as required by Article 43 (2) of the Code of Criminal Procedure, the judge advised her of the possibility of recovering damages through a civil action.
47.  On 27 September 2000 the applicant's counsel lodged a claim for damages with the Ministry of Justice. On 22 January 2001 the claim was rejected on the ground that the Ministry of Justice lacked jurisdiction to hold a preliminary hearing. Pursuant to section 9 of the Act No. 58/1969, only claims for damages resulting from wrongful decisions had to be lodged with the Ministry of Justice. In the present case, the victim suffered damage as a result of the incorrect procedure by a police officer and her action therefore had to be filed directly with a court of law.
48.  On 28 May 2001 the applicant, through her lawyer, filed an action for damages to the Bratislava III District Court. She claimed 45,000 Slovakian korunas (SKK) in compensation for damage of pecuniary nature and SKK 5 million for damage of non-pecuniary nature. As her submissions did not meet the formal requirements set out in Article 79 § 1 of the Code of Civil Procedure, in its ruling of 23 October 2001 the court gave the applicant 15 days to complement her action failing which the proceedings would be discontinued. The applicant did not comply with the request. The District Court therefore discontinued the proceedings on 17 April 2002.
49.  On 9 August 2002 the applicant filed an action against the Slovak Republic under Articles 11 et seq. of the Civil Code. She claimed compensation from the State (represented by the Prešov Regional Directorate of the Police Corps) for non-pecuniary damage in the amount of SKK 900,000 alleging that, as a result of the wrongful conduct of Lt. F., there had been an interference with her husband's physical integrity which had resulted in his death. She relied on the Poprad District Court's penal order of 18 October 2000.
50.  On 7 August 2003 the Poprad District Court dismissed the action. On 10 January 2005 the court of appeal quashed the first-instance decision.
51.  On 6 February 2006 the Poprad District Court admitted the applicant's daughter, Ms Kristína Šarišská, as plaintiff.
52.  On 6 March 2006 the applicant withdrew her claim.
53.  On 31 May 2006 the District Court discontinued the proceedings in respect of the applicant. It dismissed the claim of the applicant's daughter. It had not been shown that the daughter, who had been ten months old when her father had died and had lived with her grandmother, had suffered any interference with her personal rights warranting protection under Articles 11 et seq. of the Civil Code. In addition, the court established that the defendant, as indicated by the applicant, lacked standing in the case. The applicant and her daughter should have directly sued the Prešov Regional Directorate of the Police Corps. Finally, the claim of the applicant's daughter had been filed outside the statutory time-limit. The right claimed by her had therefore lapsed.
54.  On 20 September 2007 the Prešov Regional Court upheld the first‑instance judgment. It held that any non-pecuniary damage which the plaintiff had suffered resulted from the fatal injury which, as it had been established in the course of the criminal proceedings, her father had inflicted on himself. There had therefore been no interference with the plaintiff's personal rights as guaranteed by Articles 11 et seq. of the Civil Code. The Regional Court did not accept the first-instance finding according to which (i) the defendant lacked standing in the case and (ii) the right claimed had become statute-barred.
55.  On 18 January 2008 the applicant's daughter, represented by the applicant, lodged a complaint with the Constitutional Court. The plaintiff relied, inter alia, on Articles 2, 3, 8 and 13 of the Convention and referred to the above proceedings leading to the Prešov Regional Court's judgment of 20 September 2007.
56.  On 5 November 2008 the Constitutional Court dismissed the complaint as being manifestly ill-founded. It found no arbitrariness or unlawfulness in the proceedings complained of. With reference to its case-law the Constitutional Court further held that, in the absence of any shortcomings in the proceedings under examination, the ordinary courts involved could not be held liable for any breach of the plaintiff's material rights under Articles 2, 3 and 8 of the Convention. The Regional Court had examined the plaintiff's appeal; the latter had therefore had an effective remedy at her disposal as required by Article 13 of the Convention. 1. United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance (Annual Report, E/CN.4/1999)
57.  The report indicates, inter alia, that human rights monitoring bodies observed that the police exerted pressure on the victims of police brutality to withdraw their complaints.
58.  The report refers to allegations of instances of police participation in attacks against Roma, to the failure on the part of the authorities to carry out prompt, impartial and thorough investigations into allegations of such actions or to prosecute and punish those responsible as well as to allegations that the law enforcement officials ill-treated detainees during detention and in police custody, particularly in lock-ups and police cells.
59.  The report noted that:
“...the problem of police mistreatment of members of minority groups, particularly Roma, is of particular concern to ECRI...Victims are reportedly very unwilling to come forward through fear of reprisals and for lack of confidence in the possibilities for redress. ECRI stresses that any incidence of police brutality against minority groups should not be tolerated by the authorities, and that this should be made clear by a firm and public condemnation from politicians and police leaders. Steps should be taken to investigate all alleged mispractices and punish offenders: an independent investigatory body should carry out all such investigations...
At the level of prosecuting authorities and judges, it is noted that very few cases of racially motivated crime reach the courts at all, or, if they do, they are generally prosecuted as ordinary crimes.”
60.  The report noted that:
“In January police officers reportedly raided a Roma settlement in Kosice, injuring 16 Roma...In October, during a raid on a Romani community in Žehra, police allegedly used excessive force as they detained 9 Roma on charges of hooliganism. During the incident, the police shot a 13 year old Romani boy with a plastic bullet, and he was hospitalised as a result of his injury. Police reportedly use pressure and threats to discourage Roma from pressing charges of police brutality. Human rights monitors continued to charge that police...used their device of countercharges to pressure Roma victims of police brutality to drop their complaints...”
61.  The report observed that:
“Police reportedly use pressure and threats to discourage Roma from pressing charges of police brutality. In 1998 and 1999, Roma in the town of Vráble lodged complaints against a local law enforcement officer ... for allegedly attacking teenage Romani boys. The Ministry of the Interior investigated the case and found [the officer] not guilty ... In March two Roma from the eastern town of Michalovce voluntarily came to the police station for questioning. They were allegedly beaten by some police officers. The victims suffered several injuries including broken legs, hands and ribs. When questioned about the incident, the police first claimed that the action was justified but later admitted that it was unwarranted.” 6. International Helsinki Federation for Human Rights: Human Rights in the OSCE Region: The Balkans, the Caucasus, Europe, Central Asia and North America, Report 2001
62.  The report indicated that:
“The most common human rights violation committed by the police was the disproportionate use of coercive methods, which often resulted in injuries to the arrestee and the need for medical care. Such abuse, however, was almost impossible to prove since there was no independent control commission for complaints of ill‑treatment and misconduct by law enforcement officials.”
63.  This report observed that:
“In recent years, although racist violence against Roma in Slovakia has increased, effective prosecution and punishment have been rare. Also the police have resorted to abuse. On 27 October police officers assaulted Roma inhabitants of the village of Hermanovce, eastern Slovakia. Police entered the homes of two Roma families and beat two Roma youths, handcuffed them, forced them into the trunk of a car, and drove them to the police station ... The police offered no explanation to the detainees or their families; nor did they show arrest or search warrants to justify their actions. At the police station the two youths were allegedly beaten with truncheons and kicked. They were interrogated and shown diverse items, and pressed to falsely admit to stealing some of them. They were later released the same day, apparently without having been charged with any crime. Doctors who examined them documented bruises consistent with a beating. At no point were the two detainees advised on their rights.”